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‘Holding’ DOCA used to maintain rights to enforce security of payment claims pre-liquidation
2023-03-17

This week’s TGIF concerns Kennedy Civil Contracting Pty Ltd (Admins Appt) v Richard Crookes Construction Pty Ltd [2023] NSWSC 99, in which the New South Wales Supreme Court determined that an insolvent company’s creditors could properly make a DOCA to maintain the right under security of payment legislation to recover amounts that would have been lost on entry into liquidation.

Key takeaways

Filed under:
Australia, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Deed of company arrangement, Corporations Act 2001 (Australia), New South Wales Supreme Court
Authors:
Michelle Dean
Location:
Australia
Firm:
Corrs Chambers Westgarth
View Original Article
Restructuring rent: insolvency law innovations impacting commercial landlords
2023-03-13

Restructuring and insolvency professionals are showing real ingenuity when restructuring insolvent businesses, and landlords need to keep up.

Economic downturns create opportunities for the restructuring or acquisition of challenged assets, and we anticipate increased activity in this space in 2023. The indicators pointing in that direction are:

Filed under:
Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, Commercial tenant, Insolvency, Corporations Act 2001 (Australia), Australian Taxation Office, Australian Securities and Investments Commission, New South Wales Supreme Court
Authors:
Orla McCoy , Mikhail Glavac , Tom Gardner
Location:
Australia
Firm:
Clayton Utz
View Original Article
Major Projects & Construction 5 Minute Fix 112: Hopelessly insolvent? There is hope
2023-03-08

In Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Constructing Pty Ltd v Richard Crookes Construction Pty Ltd; In the matter of Kennedy Civil Contracting Pty Ltd [2023] NSWSC 99, the NSW Supreme Court considered whether a company on the brink of liquidation can take action to enforce a payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).

Filed under:
Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, Insolvency, New South Wales Supreme Court
Authors:
Graham Read , Frank Bannon , Dale Brackin , Sergio Capelli , Stuart Cosgriff , Lina Fischer , Andrew Fry , David Lester , Clive Luck , Jonathan McTigue , Frazer Moss , Steve O'Reilly , Joanna Pugsley , Chris Slocombe
Location:
Australia
Firm:
Clayton Utz
View Original Article
Atlas shrugged: the limits of an administrator’s lien over secured property
2022-11-01

Chief Justice Hammerschlag, sitting in the New South Wales Supreme Court (the Court), has delivered a judgement of importance to secured creditor and insolvency practitioners alike in Volkswagen Financial Services Australia Pty Ltd v Atlas CTL Pty Ltd (Recs and Mngrs Apptd) (In liq) [2022] NSWSC 573 (Atlas).

Filed under:
Australia, New South Wales, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Insolvency, Corporations Act 2001 (Australia), New South Wales Supreme Court
Authors:
Paul Apáthy
Location:
Australia
Firm:
Herbert Smith Freehills LLP
View Original Article
Court orders costs against funder of liquidator’s failed defence
2022-09-23

This week’s TGIF examines Sentinel Orange Homemaker Pty Ltd v Davis Investment Group Holdings Pty Ltd (in liquidation) (No 2) [2022] NSWSC 1171 where a court considered an application for non-party costs orders against a litigation funder and the liquidator of an insolvent defendant.

Key takeaways

Filed under:
Australia, New South Wales, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Insolvency, New South Wales Supreme Court
Location:
Australia
Firm:
Corrs Chambers Westgarth
View Original Article
Court rejects proof of debt based on alleged entitlement under SOP Act
2022-09-02

This week’s TGIF considers In the matter of Nicolas Criniti Pty Ltd (In Liquidation) [2022] NSWSC 1149 which examined the intersection between the winding up provisions in the Corporations Act 2001 (Cth) and the Building and Construction Industry Security of Payment Act 1999 (NSW).

Key takeaways

Filed under:
Australia, New South Wales, Construction, Insolvency & Restructuring, Litigation, Corrs Chambers Westgarth, Liquidation, Corporations Act 2001 (Australia), New South Wales Supreme Court
Location:
Australia
Firm:
Corrs Chambers Westgarth
View Original Article
PIF revisited - no right not to be diluted
2011-10-07

On 5 October 2011 Justice Barrett of the Supreme Court of NSW handed down a decision in Centro Retail Limited and Centro MCS Manager Limited in its capacity as Responsible Entity of the Centro Retail Trust [2011] NSWSC 1175 (“Centro”) where he found that the responsible entity of Centro Retail Trust would be justified in modifying the constitution of the trust without unitholder approval to a insert a provision permitting the issue of units at a price different to that provided for by the pre-existing provisions.

Filed under:
Australia, New South Wales, Insolvency & Restructuring, Litigation, King & Wood Mallesons, Retail, Security (finance), Investment funds, Market value, Net asset value, Constitutional amendment, Corporations Act 2001 (Australia), Constitution, Australian Securities Exchange, ING Group, Federal Court of Australia, New South Wales Supreme Court
Location:
Australia
Firm:
King & Wood Mallesons
View Original Article
Trust companies in liquidation - dealing with priority debts
2016-07-12

The decision in In the matter of Independent Contractor Services (Aust) could mean more reliance upon fair entitlements guarantee funding provided by the Commonwealth in relation to the liquidation of trading trusts.

Filed under:
Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, Costs in English law, Audit, Beneficiary, Debt, Withholding tax, Liquidation, Liquidator (law), Discretionary trust, Corporations Act 2001 (Australia), Australian Taxation Office, New South Wales Supreme Court , Trustee
Authors:
Mikhail Glavac , Orla McCoy
Location:
Australia
Firm:
Clayton Utz
View Original Article
Think you're not "regularly engaged in the business of leasing"? Think again, says new PPSA decision
2016-03-31

Key Points:

Companies that have leasing as a small and irregular part of their overall business still must comply with the PPSA if their interests in leased goods are to be protected.

Filed under:
Australia, New South Wales, Banking, Insolvency & Restructuring, Litigation, Clayton Utz, General Electric, New South Wales Supreme Court
Authors:
Dan Fitts
Location:
Australia
Firm:
Clayton Utz
View Original Article
The Nexus administration: court approval for a loan facility and limits to administrators' liability
2014-09-18

Key Points:

Courts will limit an administrator's liability where proposed funding is to be used directly to advance an agenda consistent with the objects of Part 5.3A of the Corporations Act.

A recent decision of the NSW Supreme Court highlights the flexibility of Part 5.3A of the Corporations Act and the ability of administrators to seek orders protecting their interests and facilitating restructures, and was the first stage of what promises to be a novel and challenging administration (In the matter of Nexus Energy Ltd [2014] NSWSC 1041).

Filed under:
Australia, New South Wales, Insolvency & Restructuring, Litigation, Clayton Utz, New South Wales Supreme Court
Authors:
Peter Bowden
Location:
Australia
Firm:
Clayton Utz
View Original Article

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